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ELCPartially AllowedNot stated in the judgment· [2017] KEELC 239 (KLR)

Janet Towett v John Koech [2017] KEELC 239 (KLR)

High Court of Kenya
16 October 2017
JOJ.M ONYANGO
1,347 words in judgment
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The bottom line

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A Kenyan High Court set aside a default judgment because the process server's affidavit failed to name who identified the defendant, showing proper service is essential.

What this practically means

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Executive summary

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This was a notice of motion dated 29 May 2017 by the defendant in a land dispute over parcel KERICHO/KABIANGA/1553, brought under Order 10 rule 11, Order 22 rule 22 and Order 51 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, seeking stay of execution, setting aside of an ex-parte judgment and decree, and leave to file a defence out of time. The applicant claimed he was never served with summons and only learned of the suit when served with an eviction notice; the respondent insisted he was served with summons and hearing notices and had no proprietary interest in the land. J.M Onyango J framed four issues: propriety of service, regularity of the judgment, whether the defence raised triable issues, and entitlement to the orders sought. On service, the court found the process server's affidavit defective because the watchman who identified the defendant's office was not named, contrary to Order 5 rule 15(1), applying National Bank of Kenya v Peter Oloo Aringo. Consequently the default judgment was irregular and had to be set aside ex debito justitiae, following Frigonken Ltd v Value Pak Food Ltd as cited in James Kanyita Nderitu. On the merits, applying Tree Shed Motor v DT Dobie and Patel v East Africa Cargo Handling Services, the court found the draft defence, which challenged the respondent's title and alleged fraudulent registration, raised triable issues fit for a full hearing. Balancing the respondent's interest in her judgment and the delay (the defendant moved only upon being served with an eviction order, in a case dating back to 2006), the court set aside the ex-parte judgment and decree, awarded Kshs. 15,000 thrown-away costs, deemed the draft defence filed upon payment of court fees, and made the costs of the application to be in the cause.

Key legal issues

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01

Whether service of summons was proper

Holding

Service was defective because the process server's affidavit did not name the person who identified the defendant

Reasoning

Order 5 rule 15(1) requires the affidavit of service to state the time, manner of service and the name and address of the person identifying the person served. The process server, Geoffrey Sang, mentioned only an unnamed watchman who directed him to the defendant's office, falling short of the rule, as per National Bank of Kenya v Peter Oloo Aringo.

p. 2
02

Whether the ex-parte judgment was regular

Holding

The judgment was irregular since it flowed from defective service and had to be set aside ex debito justitiae

Reasoning

Following Oloo Aringo and Frigonken Limited v Value Pak Food Ltd (as cited in James Kanyita Nderitu), the court held that without proper service, the resulting default judgment is irregular and must be set aside as of right, not merely as a matter of discretion.

p. 2
03

Whether the draft defence raises triable issues

Holding

Yes - the draft defence challenging the plaintiff's title and alleging fraud raises triable issues warranting a full hearing

Reasoning

Applying Tree Shed Motor v DT Dobie and Patel v East Africa Cargo Handling Services, the court compared the plaint (trespass by registered owner) with the draft defence (challenging title and alleging fraudulent registration) and found a prima facie defence that should go to trial.

p. 2

Legal principles established

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  • Failure to comply with Order 5 requirements on affidavits of service renders service defective and any resulting judgment irregular
  • Default judgment entered without proper service is irregular and must be set aside ex debito justitiae
  • A default judgment will be set aside if the draft defence raises a reasonable/triable issue

Court orders

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  1. 1.Stay of execution of the judgment and decree pending the hearing and determination of the suit (implied by setting aside the judgment and decree)
  2. 2.The ex-parte judgment and decree issued herein set aside
  3. 3.The applicant to pay the plaintiff a sum of Kshs. 15,000 as thrown away costs
  4. 4.The draft defence deemed as filed and served upon payment of the requisite court fees
  5. 5.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 10 rule 11
  • Civil Procedure RulesOrder 22 rule 22
  • Civil Procedure RulesOrder 51 rule 1, 15 and 16
  • Civil Procedure RulesOrder 5 rule 15(1)
  • Civil Procedure ActSections 1A, 1B and 3A

Cases cited (6)

  • National Bank of Kenya V Peter Oloo Aringo
    2004 eKLR
  • Frigonken Limited V Value Pak Food Ltd
  • James Kanyita Nderitu & Another V Marios Philota Ghikas and Another
    (2013) eKLR
  • Tree Shed Motor Limited V D T Dobie
    Civil Appeal No 38 of 1998
  • James Wanyoike & 2 Others V CMC Motors Group Limited & 4 Others
    (2014) eKLR
  • Patel V East Africa Cargo Handling Services Ltd
    (1974) EA 75
Jurisdiction invoked
Order 10 rule 11, Order 22 rule 22 and Order 51 rule 1, 15 and 16 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Janet Towett v John Koech [2017] KEELC 239 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/239/eng@2017-10-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.